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Employees: Are you feeling pressure to act unethically or unlawfully?

By Jennifer Mathers McHenry

The revelations recently by the CBC have been stunning: employees from all of Canada’s Big Five banks allege that they are routinely pressured by their employers to upsell, trick and even lie to customers in order to meet sales targets and keep their jobs.

The CBC says it’s heard from thousands of bank employees from across the country who have reported being intensely pressured by their supervisors to hit sales revenue targets. That pressure includes regular monitoring, sometimes even on an hourly basis, and in some cases bosses who encourage them to deceive customers to seal the deal.  In some cases it sounds like employees have said they were expressly asked to break the law and in others the allegation is that unethical behaviour is either required to meet sales targets or is tacitly approved or even expected by management notwithstanding codes of conduct which say otherwise.  All five banks have, not surprisingly, denied pressuring their employees to break the law or otherwise behave unethically, but the scandal has ensued in any event if stock prices and media attention are any indication.

The scandal raises questions about what to do if you are pressured or feel pressured by bosses to engage in unethical or illegal conduct. What are your options when your marching orders are immoral, unethical or even illegal? 

This is almost certainly one of the most legally and practically challenging dilemmas you will face in your career.  There are potential negative consequences for both speaking up and for complying. Employees who face these challenges often feel trapped in a lose-lose situation, but the fact is that depending on the circumstances there may be legal or strategic options available.  Navigating those options may be tricky, and if at all possible I would advise any employee finding themselves in these circumstances to seek legal and strategic advice at the earliest possible stage so you get help understanding your legal rights and obligations, understanding the legal and practical consequences of taking certain steps, and properly documenting the situation and approaching it both as effectively as possible and as strategically as possible (ie with a view to achieving your goal).  Banding together with colleagues to get that advice as a group may make it both more affordable and may make you feel less like you are out on a limb on your own. 

In my view, there are a number of potential ways a situation in which an employee is being asked to or feeling pressured to do something illegal or unethical may give rise to a legal remedy. Depending on the facts, it could be a breach of the employer’s duty of good faith performance of the employment contract, it could constitute a constructive dismissal as a result of the employer’s unfair dealing, and it could be simply a breach of an implied term in the employment contract that your boss won’t make you break the law. I would argue that where the instruction is expressly to break the law, it would likely be all three.  Where the pressure is less overt or where the line you are being asked to cross is ethical rather than legal, the answer is less obvious but an employment lawyer may nevertheless be able to help you build a case that you have been constructively dismissed, which, when successful, results in your employer owing you a severance package.

But what about the employee who doesn’t want a package and who wants or needs their job? Legal remedies can be blunt instruments and while it is almost certainly a good idea to ensure you understand and, were needed, protect those options, they may not be your first or best choice. I think it  is vitally important not to lose sight of the possibility that even a situation which feels unfixable may not be, and, once again, getting good advice and assistance could be the difference between getting fired for being a squeaky wheel and effectively protecting not only your job but your ability to do it legally and ethically. Ask yourself: Can the targets be negotiated?  Is the request being made of you truly to do something illegal or otherwise wrong? If it isn’t clear, is there a way to clarify the request in writing so as to create a paper trail or, better yet, cause the person pushing you to see in black and white that their request is not appropriate or possible for you to fulfill? Is your boss aware that meeting your target requires or encourages improper conduct?  If so, is the HR department aware?  How about your boss’ boss?  It can be scary to escalate these types of issues, even within a large and generally well-respected organization.  That much is obvious from the fact that thousands of bank employees have now reached out to the CBC with concerns in circumstances where, presumably, they didn’t think they could effectively reach out to their employers.

One thing is clear: your job should not require you to behave unethically and cannot require you to break the law.  In most cases, even where it doesn’t feel like it, you have options, and help is available. 

 


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Tags: Executive Employment Law and Litigation Employment Law and Litigation